Zhan Gao v Department of Human Services
[2011] FWA 8072
•29 NOVEMBER 2011
Note: An appeal pursuant to s.604 (C2011/6914) was lodged against this decision- refer to Full Bench decision dated 20 February 2012 [[2012] FWAFB 1318] for result of appeal.
[2011] FWA 8072 |
|
DECISION |
Fair Work Act 2009
s.365—General protections
Zhan Gao
v
Department of Human Services
(C2011/5854)
COMMISSIONER BISSETT | MELBOURNE, 29 NOVEMBER 2011 |
General protections application - extension of time - multiple applications.
[1] This is an application by Mr Zhan Gao for Fair Work Australia to deal with a dispute on the basis that he was dismissed from his employment with the Department of Human Services (DHS) and that this dismissal is in contravention of Chapter 3 Part 3-1 of the Fair Work Act 2009 (the Act).
[2] Mr Gao was dismissed from his employment on 19 April 2010. Mr Gao’s application to Fair Work Australia was made on 14 September 2011.
[3] In its preliminary material, DHS raised two jurisdictional objections to the matter being heard. The first is that Mr Gao is precluded from making an application under s.729 of the Act. The second is that the application is lodged outside the 60 day time limit for the making of such an application. At the hearing on 24 November 2011, Mr Cooney of DHS indicated that he would not pursue the s.729 objection but would pursue the out of time objection.
[4] Section 366 of the Act states:
366 Time for application
(1) An application under section 365 must be made:
(a) within 60 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (2).
(2) FWA may allow a further period if FWA is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
[5] Mr Gao’s application is 453 days beyond the 60 day time limit for making such applications. For Mr Gao to have made his application within 60 days after the dismissal took effect, it would need to have been made by 18 June 2010.
[6] Mr Gao seeks an extension of time within which to make his application. In determining if there are exceptional circumstances such that I should grant such an extension of time, I must take into account those matters at s.366(2)(a)-(e).
Reason for delay
[7] Mr Gao lodged an application for unfair dismissal relating to the dismissal subject to this application under s.394 of the Act on 9 December 2010. That application was dismissed for want of jurisdiction (relating to Mr Gao’s employer) by an order of Ives DP on 25 February 2011. That decision was appealed and subsequently quashed by a Full Bench 1 of Fair Work Australia who remitted the s.394 application to Hamilton DP.
[8] Hamilton DP refused the request of Mr Gao for an extension of time by decision given in transcript on 2 June 2011. This was subsequently appealed by Mr Gao to a Full Bench of Fair Work Australia which rejected his appeal by a decision on 23 August 2011. 2
[9] Mr Gao subsequently made the application subject to this decision under s.365 of the Act on 14 September 2011.
[10] Mr Gao says that the reasons for the delay in the making of this application are that:
1. At the time of his dismissal he raised issues with DHS by email that primarily went to matters of expenditure on a number of contracts. On 23 April 2010, Mr David of DHS replied that the matters would be investigated. Following a considered response from Mr Bevers, Mr Gao sought further details on 9 July 2010. DHS did not respond and on 3 December 2010 when Mr Gao followed this up with DHS, it advised that the matter was concluded.
2. He was not aware of the time limit for making applications until he contacted Fair Work Australia on 7 December 2010.
3. He took no action between 9 July and 3 December 2010 because he was suffering from depression caused by his dismissal, the death of his mother, criminal charges and school problems with his son, financial difficulties and marriage problems.
4. The Full Bench had dismissed his appeal against the decision of Hamilton DP and there ‘is no jurisdiction against Full Bench’ (sic) so he made an application under s.365. 3
[11] Mr Gao’s evidence and submissions do not provide any more substantial material than that outlined in his written submissions.
[12] Mr Gao’s emails of 15 April (prior to his dismissal) and 22 April 2010 4 (following his dismissal) went to the matter of expenditure of public money on contracts (contract management). Mr Bevans replied on 28 June 2010 and sent a further reply on 5 July 2010.5 Whilst the contract management issues were recognised by Mr Bevans as at times generating a difference of opinion between staff, it is not apparent why the raising of the contract management issues was the cause of the delay in Mr Gao making an application to Fair Work Australia under s.365 of the Act.
[13] Mr Gao provided no evidence of any probative value with respect to those matters he says affected him between 9 July and 3 December 2010 although I note that within the material submitted by Mr Gao is an email dated 3 June from Mr Bevans of DHS to Mr Gao in which Mr Bevans acknowledges that Mr Gao was in China as his mother was ill.
[14] I accept that Mr Gao’s mother died in 2010 but even if I do accept his statements with respect to his son, his finances and his marital problems, this does not explain the total lack of activity by him in pursuing his general protections claim or any claim between July and December 2010.
[15] If it is that those matters he pursued with DHS also went to his termination of employment, then I concur with the view of the Full Bench in dismissing his appeal against the failure to grant an extension of time in his unfair dismissal matter that ‘Mr Gao’s request that DHS further review the dismissal [does] not constitute a circumstance excusing the delay in lodging the application. A further review could have been sought even after the application had been lodged.’ 6
[16] DHS says that there is no reasonable explanation for the delay and even if I excluded the time it took to prosecute Mr Gao’s unfair dismissal application that still leaves a delay of some 160 days.
[17] Had Mr Gao lodged this application within the statutory time period of 60 days it should have been made by 18 June 2010. On Mr Gao’s own evidence he took no action to pursue any claim in Fair Work Australia until advised by a person he spoke to in December 2010. On this basis, even if he had not pursued an unfair dismissal application but had pursued this one instead, he would not have lodged the application until December 2010 and it would still have been out of time.
[18] Overall I find that there is no acceptable reason for the delay in lodging this application.
Action taken to dispute the dismissal
[19] Mr Gao says that he has provided examples in his letters (to DHS) relating to workplace bullying and coercion which he says are related to his dismissal. 7 Whilst Mr Gao did not go specifically to these matters, I take this as a reference to his emails to Mr Bevans of 9 July 2010; 22 April 2010 (points 5 and 10); and an email to Ms Walker at Hays of 14 October 2009.8
[20] DHS submits that the emails sent by Mr Gao relate to contract management issues and not to the termination of Mr Gao’s employment. As such it submits he took no action to dispute his dismissal.
[21] To the extent that the emails are relevant in terms of action taken to dispute the dismissal it can only be those emails sent by Mr Gao at the time of or following his dismissal.
[22] I find that Mr Gao did raise issues with respect to bullying in his email of 22 April 2010, although the substantial aspects of this email was with respect to contract management and he did not draw any relationship between what he saw as bullying and the termination of his employment. To accept that Mr Gao did take action to dispute his dismissal, it must be accepted that the matters he raised with respect to contract management also related to his dismissal by the DHS.
[23] It is clear that Mr Gao did dispute the termination of his employment by lodging an application under s.394 of the Act. As is set out above however, this action was taken some eight months after his dismissal took effect.
[24] On the evidence I find that Mr Gao took limited action to dispute his dismissal.
Prejudice to the employer
[25] Mr Gao makes no relevant submission with respect to this matter although he does submit that he had understood, by the response from Mr Bevans, that his dismissal was being reviewed by DHS under the Fair Treatment Policy. 9
[26] DHS submit that the period of time that has elapsed since the dismissal of Mr Gao would result in prejudice to the employer if an extension of time was granted. Whilst the DHS does have a human resources area, Mr Cooney says the continuation of this matter adds considerably to an area dealing with substantial employment related matters.
[27] I find that there is some prejudice to DHS in granting the extension of time. This is limited to the department being required to continue to defend itself from the claims of Mr Gao some 18 months after his dismissal from employment. This will require time and effort in circumstances where the actual events that occurred in Mr Gao’s employment happened quite some time ago. On the other hand, DHS is a large department with extensive resources at its disposal. The granting of an extension of time to Mr Gao, whilst an inconvenience will not be highly prejudicial.
The merits of the application
[28] As I comprehend Mr Gao’s submission, he says that he was dismissed and/or bullied (the adverse action) because he raised issues and/or made a complaint with respect to contract management (he exercised a workplace right). He also says that he was coerced to not raise those contractual management issues (that is, to not exercise this workplace right). 10
[29] Mr Gao says that because he insisted that work practices be consistently applied he was ‘hassled and verbally abused,’ had his work arrangements altered and was not allowed to attend work site meetings. He also submits that when he raised issues with respect to contract management in terms of expenditure of public funds 11 his employment was terminated soon after. Further, Mr Gao alleges that the handling of his complaint (which I take to be his email of 22 April 2010) ‘went virtually unheeded by the DHS, which was unusual or out of the ordinary as the largest state government agency across Victoria.’12 Little additional detail was given and Mr Gao could not clearly articulate to me how Part 3-1 of the Act had been contravened in his dismissal.
[30] DHS submits that expenditure of money by the DHS is carried out pursuant to the Housing Act 1983 (Vic) and that the Housing Act 1983 (Vic) does not constitute a workplace law or workplace instrument for the purposes of s.340(1)(c) of the Act. As such, it submits that, even if Mr Gao was dismissed for raising contract management issues with his employer (and they do not say this is why he was dismissed), such a dismissal would not be a contravention of Part 3-1 of the Act.
[31] Further, it submits that Mr Gao’s employment was terminated because he failed to follow reasonable and lawful directions from his supervisor on a number of occasions including November 2009, 13 December 200914 and at the time of the termination of his employment. Dismissal for the reason of not following a reasonable and lawful direction is not a contravention of Part 3-1 of the Act.
[32] I have considered in detail the material submitted by Mr Gao. His complaint with the DHS appears to relate to the processes by which work involving the expenditure of public money was approved, particularly through variations to contracts. Whilst these matters arose in the course of his employment, they do not provide merit to his claim.
[33] On the evidence of the material before me, limited although it is, I find little merit in Mr Gao’s application under s.365 of the Act.
Fairness as with other persons in like position
[34] No submissions were put to me on this matter.
Are there exceptional circumstances?
[35] I respectfully adopt the reasoning of His Honour Vice President Lawler in Johnson v Joy Manufacturing Co Pty Ltd, 15 where the meaning of ‘exceptional circumstances’, as set out in Parker v Department of Human Services, was applied. That is, I adopt the approach that to be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.
[36] Even if Mr Gao had made application under s.365 of the Act instead of the s.394 at the time he made the s.394 application, this application would still be out of time by some 174 days. As it stands, this application is some 453 days out of time.
[37] Mr Gao’s application for an extension of time with respect to his unfair dismissal application was unsuccessful. The circumstances surrounding this application are not dissimilar to those which existed when he sought an extension of time in his unfair dismissal claim except that Mr Gao now says that there were a range of personal matters in his life that also affected his ability to lodge the application within time. I have considered these circumstances but Mr Gao has put nothing to me that explains the extent to which, or why, they contributed to such a delay in lodging his application as confronts me now.
[38] In Nulty v Blue Star Group Pty Ltd 16 the Full Bench said:
Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance. 17
[39] Mr Gao agrees that ignorance of the statutory time limits is probably not an exceptional circumstance. 18 That Mr Gao was not aware of the time limit for making an application under the Act until he contacted Fair Work Australia on 7 December 2010 is not an acceptable reason for the delay in making the application in this matter. It is reasonable to assume that were he truely aggrieved by the decision of DHS to terminate his employment he would have taken action earlier. Mr Gao did not do so but rather chose to pursue DHS with respect to contract management issues. This was his decision to make but does not provide a reasonable explanation for the delay in making this application.
[40] I am not convinced, on the evidence provided by Mr Gao, that there is much merit to his claim. Mr Gao’s complaint with DHS goes to the disagreement he had with those he worked with on the management of public monies. Mr Gao has failed to demonstrate any relationship between his workplace rights and the decision to terminate his employment. Mr Gao agrees that he raised issues relating to contract management in 2009 but clearly his employment was not terminated at that time. Mr Gao also raised issues of workplace bullying and coercion. Mr Gao relies on the requirement placed on him by his supervisor to do certain work to support this. That he did not agree with the directions given to him by more senior employees does not amount to bullying or coercion.
[41] It does appear that Mr Gao has lodged this application, at least in part, because there was no more he could do to prosecute his unfair dismissal application after it was rejected by the Full Bench. 19 It is not unusual that an individual may not be able to proceed with an unfair dismissal claim for jurisdictional reasons - in this case that it was lodged out of time. This does not, of itself, create an exceptional circumstance when a general protections application is lodged out of time with respect to the same matter.
[42] Having considered all of the material before and in particular those matters at s.366 of the Act, I find that there are no exceptional circumstances in this case such that an extension of time for filing the application should be granted.
[43] The application for an extension of time is dismissed.
COMMISSIONER
Appearances:
Mr Gao on behalf of himself.
Mr Cooney of the Department of Human Services.
Hearing details:
2011.
Melbourne:
November 24.
1 [2011] FWAFB 3050.
2 [2011] FWAFB 5605.
3 Exhibit G3, paragraph (a).
4 Exhibit G1, page 18 (email dated 15 April 2010) and pages 13-15 (email dated 22 April 2010) from Mr Gao to Mr Terry Bevans.
5 Exhibit G1, page 7 (email dated 28 June 2010) and pages 5-6 (email dated 5 July 2010) from Mr Bevans to Mr Gao.
6 [2011] FWAFB 5605, [10].
7 Exhibit G3, paragraph (b).
8 Exhibit G1.
9 Exhibit G3, paragraph (c).
10 See Form F8, Exhibit G3, paragraph (d) and transcript PN 44-47.
11 Exhibit G1, page 18 (email dated 15 April 2010).
12 Form F8, response to question 2.2.
13 Exhibit DHS1.
14 Exhibit DHS2.
15 [2010] FWA 1394.
16 [2011] FWAFB 975.
17 [2011] FWAFB 975, [14].
18 Form F8.
19 Exhibit G3, paragraph (a)(4).
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